Cayman Islands Court of Appeal vs. Barbados ERT: A Comparative Analysis of COVID-19 Employment Disputes Decisions

 

Introduction:

In a recent ruling earlier this month (January 2024), the Court of Appeal in the Cayman Islands has illuminated a legal loophole that leaves employees of charitable organizations without the protections afforded by the Labour Act. The case involves Shelliann Bush, an employee of The Pines Retirement Home in Cayman, who faced dismissal over her refusal to take the COVID-19 vaccine, citing religious beliefs. This case highlights the absence of provisions for charity employees under the Cayman Islands' Labour Act, particularly Section 3, which explicitly excludes charitable organizations, churches, and the public service, raising concerns about the need for legislative clarity and employee safeguards.

This ruling in the Cayman Islands stands in stark contrast to yesterday's Employment Rights Tribunal decision in Barbados, affirming the validity of the Claimant's discrimination complaint. The employee bravely contested her employer's COVID-19 vaccine mandate, setting a groundbreaking precedent as the first to present her case before the Employment Rights Tribunal (ERT).

The focal point of the Barbados case was the employer's requirement for a weekly negative COVID-19 PCR test result. Whyvonna Wiggins-Hoyte, the Claimant, asserted a violation of section 6 of the Employment (Prevention of Discrimination) Act (E(PoD)A). 

Background:

In the case of the Cayman Islands, Shelliann Bush, a dedicated employee with a decade of service at The Pines Retirement Home in Cayman, found herself at the center of a contentious issue when the organization mandated COVID-19 vaccinations for all staff. Despite undergoing regular PCR tests, Bush faced suspension without pay for non-compliance. As the organization intensified its vaccination policy in October 2021, requiring all current and future employees to be vaccinated, Bush felt pressured and unfairly treated.

Legal Challenge:

Bush filed a complaint asserting unfair dismissal and discrimination based on her religious beliefs. However, her pursuit of justice faced a significant hurdle when the Department of Labour and Pensions denied her a hearing, contending that charitable organizations fell outside its jurisdiction. The Grand Court initially ruled in favor of Bush, stating that her rights under the Bill of Rights were infringed. Nevertheless, the Court of Appeal in the Cayman Islands overturned this decision, emphasizing the exclusion clause in Section 3 of the Labour Act, which specifically excludes charitable organizations, churches, and the public service.

Section 3, Labour Act

Section 3 of the Labour Act states that: This Act does not apply to 

(a) the public service: 

Provided that the Personnel Regulations (2019 Revision) from time to time applying to the public service shall not prescribe or permit conditions of service which are less favourable to the employee than those required by this Act; 

(b) charitable organisations; or 

(c) churches.

Legal Analysis:

Section 3 of the Labour Act in the Cayman Islands explicitly excludes charitable organizations, churches, and the public service from its provisions, leaving employees of such entities without the protections guaranteed by the Act. The Court of Appeal in the Cayman Islands, led by Hon. Sir John Goldring, expressed skepticism about the legislature's intention to create rights for employees of excluded bodies while exempting the employers from the Act. The judge argued that the exclusion of specific employers logically extends to exclude employees of those employers from the Act.

Implications and Suggestions:

This case underscores the urgent need for legislative review in the Cayman Islands to address the gaps in protection for charity employees. The Labour Act should be amended to ensure that all workers, regardless of the nature of their employer, have access to fundamental rights and protections. Employers, especially those in charitable organizations in the Cayman Islands, must also adopt transparent communication and fair practices when implementing policies that may affect employees' rights. Educating employees about the implications of workplace policies, such as vaccination mandates, can foster a better understanding and prevent potential legal disputes.

Comparative Analysis:

In contrasting the legal landscapes of the Cayman Islands and Barbados, distinct legal frameworks and outcomes come to the forefront. The Cayman Islands' case centers on the dismissal of Shelliann Bush, a charity employee who refused the COVID-19 vaccine due to religious beliefs. The Court of Appeal's decision exposed a legal gap in the Labour Act, explicitly excluding charitable organizations, churches, and the public service. This underscores the urgency for legislative review to extend protections to charity employees and underscores the need for transparent communication and fair practices by charitable organizations.

In contrast, the Barbados case revolves around the employer's mandate for a weekly negative COVID-19 PCR test, and the Employment Rights Tribunal deemed the policy discriminatory under section 6 of the Employment (Prevention of Discrimination) Act. The decision sets a precedent for employees challenging mandatory COVID-19 measures, emphasizing the vital need for employers to meticulously assess the necessity and proportionality of such policies to avoid legal repercussions. Overall, these distinct cases highlight the nuanced challenges and legal intricacies stemming from COVID-19-related employment disputes in various jurisdictions. 

Conclusion:

The Cayman Islands case emphasizes the vulnerability of charity employees, calling for legislative reforms, while the Barbados decision establishes a critical precedent, emphasizing the necessity for careful policy evaluation by employers in navigating pandemic-related employment regulations.